Ilyas Ahmed vs The Station Director, Commercial Broadcasting Service, All India Radio, Hyderabad and another

Chennakesava Reddy

The petitioner, an Announcer in the Commercial Broadcasting Service, All India Radio, Hyderabad, seeks to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution to interdict his transfer in the same capacity to the All India Radio, Vijayawada, by the order of the Station Director (Commercial), All India Radio, Hyderabad dated 24-3-1979. The facts leading to the filing of this writ petition briefly stated are these. The petitioner was first appointed as an Announcer, All India Radio, Vijayawada, on 27-5-1972 under an agreement entered into by him with the Government of India. He was later on transferred to the Commercial Broadcasting Service, All India Radio, Hyderabad, on 13-9-1972. Aziz Qureshi, the second respondent herein, was posted as Station Director, Hyderabad, and he assumed charge on 30-9-1976. It is alleged by the petitioner that the treatment of the subordinate staff and artists by the second respondent was very unfair and humiliating and therefore all the members of the staff sent a memorandum in January, 1977 to the Director General, All India Radio, New Delhi, requesting him to enquire into the serious and grave irregularities pointed out by him in the petition. One woman Artist by name Mrs. Jyostna also sent up a separate petition to the Director General alleging that the second respondent was harassing and trying to misbehave with her making use of his official position. She further alleged in her petition that the second respondent was in the habit of passing vulgar comments about her appearance and dress despite of serious protests from her. It appears, he also desired her to see him all alone in his office room under the pretext of discussing programmes or to enquire as to why she wanted to avail festival leave. It is the case of the petitioner that he went to the rescue of Mrs. Jyotsna on a number of occasions and saved her from the embarassing situations she was forced to face with the second respondent. On receipt of the aforesaid two complaints, the Director General deputed one M.S. Gopal, Deputy Director General Bombay, on 25-1-1979 to enquire into the allegations against the second respondent. The Deputy Director General conducted an enquiry and submitted his report. During the course of enquiry, and the petitioner alleges that the second respondent made some false and frivoluous complaints against the petitioner and the woman artist Mrs. Jyotsna. The petitioner case is that the second respondent with a view to wreak vengence against him for interrupting his amorous affairs and with the mala fide intention of getting rid of him from Hyderabad transferred him by the order dated 24-3-1979 to the All India Radio, Vijayawada. It is this order of transfer that the petitioner seeks to quash in this writ petition.

In the counter-affidavit filed by the second respondent he stated that the petitioner was working at Commercial Broadcasting Service. All India Radio, Hyderabad, till 24-3-1979 and that on 24-3-1979 he was relieved from Commercial Broadcasting Service. All India Radio, Hyderabad consequent on his transfer to the All India Radio, Vijayawada by the Director General All India Radio New Delhi. It is asserted that under paragraphs 2 and 8 of the agreement signed by the petitioner he is liable for transfer to any place in the country, that the order, has been passed by the Director General and that he only implemented the same by issuing the impugned order. The allegation that the issued the transfer order to send him away from Hyderabad is denied. As regards the averments in the writ petition that all the Artists sent up a memorandum in January, 1977 complaining against the second respondent''s treatment and behaviour towards the subordinate staff, the second respondent has admitted that a memorandum dated 15-1-79 signed by 11 members of the staff was sent to the Director General. His case is that Mrs. Jyotsna, an Announcer, and the petitioner were not behaving properly and so he pulled them up for their questionable conduct. According to him, to cover up their mis-behaviour the petitioner instigated Mrs. Jyotsna to give a petition with false allegations against him. The Director General acted immediately on the complaints received from Mrs. Jyotsna and the other Artists and deputed on 25 1-1979 Mr. M.S. Gopal, Deputy Director General at Bombay, to look into the affairs. The second respondent denied that any connected documents were handed over to the Enquiry Officer M.S. Gopal by him. The second respondent swears that the transfer order was only issued by the Director General, New Delhi and that he merely relieved the petitioner based on the orders of the Director General on 24-3-1979. It appears that Mrs. Jyotsna has also been transferred from Commercial Broadcasting Service.

In the counter-affidavit filed on behalf of the third respondent it is admitted that complaints by Mrs. Jyotsna and some other members of the office had been received against the second respondent, that the Director General deputed the Deputy Director General M.S. Gopal on 26-3-1979 to conduct the enquiry and report and on the receipt of the report submitted by M. S. Gopal, a decision was taken in the Interest of administration to transfer the petitioner from Hyderabad to Vijayawada. In the affidavit sworn to by the Deputy Director General, All India Radio it is stated that the decision to transfer the petitioner was not taken mechanically that M.S. Gopal was only deputed to enquire into the complaints against the second respondent and that keeping in view the administrative reasons the second petitioner was transferred to Vijayawada from where he was transferred earlier to Hyderabad. It is once again reiterated in the affidavit that the decision to transfer the petitioner back to Vijayawada was taken purely independently and not mechanically for administrative reasons without in any way being influenced by the report of the second respondent.

The learned counsel for the petitioner assails the order of transfer as one made mala fide and ordered by way of punishment based on the adverse report about his conduct sent up by the second respondent and therefore ultra vires. The learned Standing Counsel for the Central Government Sri Subrahmanya Reddy attempts to uphold the order of transfer on the ground that it was purely made on administrative grounds and is therefore, not justifiable under Article 726 of the Constitution. It is further submitted that the transfer ordered by the third respondent was neither mala-fide nor was it by way of punishment and that the facts and circumstances of the caw are compatible with the conclusion that the transfer was ordered in the exigencies of service and not in bad faith. It is pleaded that the petitioner was employed under a Contract of Service and, therefore, the remedy under Article 226 was unavailable to him to enforce a contract qua contract even if the post is a civil post and transfer is mala fide or is by way of punishment.

The first question that requires consideration is whether an order of transfer by an administrative authority is justifiable. The learned counsel for the petitioner submits that the order in question is susceptible to judicial review in as much as it was made mala fide and by way of punishment and is, therefore, ultra vires on the part of the administrative authority. Great support is sought to be garnered from the decision of the Calcutta High Court in N.N. Singh vs. General Manager, Chittaranjan Locomotive works 1973 (1) SLR 1153 and the decision of the Allahabad High Court in Sangam Lal Dube Vs. Director of Education and Another, In the first of the two cases, it was held that the High Court can probe and scrutinise the administrative order to see if it has been passed in colourable exercise of power or is mala fide and is not in administrative interest or in the exigencies of work. In the second of the cases, the Allahabad High Court held that the order of transfer passed on a complaint by the superior officer as a measure of punishment was liable to be quashed. The High Court observed that the transfer is not purely administrative in character when it is made by way of punishment on the complaint of a superior officer as regards the work of the civil servants. It was further observed that whether the order of transfer was by way of punishment or as a result of some administrative policy is a matter which will depend upon the circumstances of each case.

In Lachman Dass vs. Shiveshwarkar AIR 1967 Punj 79 H.R. Khanna, J., (as be then was) observed:

A variety of factors may weigh with the authorities while considering the question of transfer viz., the suitability of the official for the post, his aptitude, past conduct, reputation, the period for which he has been on that post and a number of other grounds which may be clubbed together under the head "exigencies of service". It is not for this Court in a petition under Article 226 to go into the matter and adjudicate about the advisability or propriety of the transfer. The Court can only interfere if the transfer is violative of any legal provision or is otherwise mala fide. Except in such a limited contingency the order of transfer is neither open to judicial review nor justifiable.

The Supreme Court in E.P. Royappa Vs. State of Tamil Nadu and Another, held that transfer of a Chief Secretary to another post not lower in status and responsibilities can be made in the larger interest of administration provided that does not involve violation of any of his legal or constitutional rights. Bhagavati, J., observed that the displacement of the Chief Secretary from his post would not be arbitrary and it would not attract the inhibition enshrined in Articles 14 and 16 of the Constitution of India.

It may thus be seen from the rulings referred to above that judicial review of an order of transfer is permissible. But it is not permissible to probe or enquire about the propriety or advisability authorities based on the exigencies of administrative which include a variety of factors, viz., suitability of the official to the post, his past conduct and reputation, his aptitude, the period for which he has been in that post etc. Judicial review or justifiability is permissible if the order of transfer is made in mala fide exercise of power of vitrated by hostile discrimination thereby rendering the action ultra vires and attracting the inhibitions enshrined in the Articles 14 and of the India.

It is, therefore, necessary to see whether the transfer in this case is mala fide or vitiated by any vindictive attitude or hostile discrimination of the authorities. It is the case of the petitioners that the second respondent ordered his transfer to get rid of him from Hyderabad since he on a number of occasions intervened while Mrs. Jyotsna was placed in an embrassing situation in the office room of the second respondent. But it is clear from the counter-affidavit of the third respondent viz., the Director General of All India Radio that the transfer was ordered by the Director General purely on administrative grounds and it was not made after any enquiry into any complaint made against the petitioner by the second respondent. On the other hand, it is sworn by the third respondent that the enquiry was only ordered into the complaints against the second respondent, that M.S. Gopal enquired into the allegations made against the second respondent by Mrs. Jyotsna and other Artists and submitted a report and that the enquiry by M.S. Gopal had nothing to do into any complaint against the conduct of the petitioner by the second respondent. I have gone through the record and I do not find anything in the report of M.S. Gopal against the petitioner I have, therefore, no hesitation in holding that the transfer of the petitioner by the third respondent was neither mala fide nor was it vitiated by any vindictive motive of the second respondent.

The next question is whether the remedy under Article 226 of the Constitution is available to the petitioner who entered the service under a contract although the post held by him is a civil post. The question as to what is a ''civil post'' within the meaning of Article 311 of the Constitution is no longer res integra. The Supreme Court in The State of Assam and Others Vs. Shri Kanak Chandra Dutta, has explained what a (sic) post is. The Supreme Court observed;

.....................a civil post means a post not connected with defence outside the regular civil services. A post is a service or employment. . . . There is a relationship of master and servant between the State and a person said to be holding a post under it. The existence of this relationship is indicated by the State''s right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration..............A post may be created before the appointment or simultaneously with it. A post is an employment but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State.

Therefore, applying the said test, there can be no doubt or difficulty in holding that the post of Announcer in the All India Radio is a civil post, and the petitioner who holds a civil post is entitled to the protection of Article 311 (2) of the Construction.

The learned Standing Counsel, however, sought to support the order of transfer on the ground that paragraphs 2 and 8 of the Agreement entered into by the petitioner provide for the transfer of the petitioner to any place within the country, that there was no breach of the agreement and that, in any case, the remedy under Article 226 of the Constitution was unavailable to enforce a contract quo contract. He relied on a decision of the Supreme Court in Kulchhinder Singh and Others Vs. Hardayal Singh Brar and Others, In that case, Krishna Iyer, J., observed that remedy under Article 226 was unavailable to enforce a contract qua contract. It was further observed.

A mere contract agreeing to a quota of promotions cannot be exalted into a service rule or statutory duty. Private law may involve a State, a statutory body, or a public body in contractual or tortious actions. But they cannot be siphoned off into the writ jurisdiction.

There is no dispute that the petitioner in this case was employed as an announcer by virtue of an agreement entered into by him with the Government of India. Therefore, even if there was any breach of the agreement, the remedy under Article 226 of the Constitution is not available to him. For the reasons recorded above, the writ petition must fail and it is accordingly dismissed.